Since the election, I have been flooded with questions from law students who were eager to work for federal agencies tasked with protecting U.S. national security but who are now wondering whether they can in good faith work for an administration whose newly elected leader has promised to bring back torture, withdraw from core international treaties, eradicate efforts to battle climate change, threaten a trade war with China, withdraw military support for critical allies, support the spread of nuclear weapons, and accept Vladimir Putin’s world-order threatening conquest of Crimea.
For the sake of the country, I say yes. But be prepared.
During the election, I supported Hillary Clinton. I believed Donald Trump posed an unprecedented threat to American democracy and national security and, indeed, to the world order. Since the election, my fears have not eased. They have instead grown. Recent news that Steve Bannon, a white nationalist and anti-Semite, will serve as a senior advisor to President Donald Trump should scare us all.
These fears reflect the reality that there is little to stop a determined Trump administration from putting in place the most extreme policies. Republicans control the House and Senate and are likely to soon have a Republican-appointed majority on the Supreme Court.
President Trump will also inherit a presidency that possesses unprecedented unilateral powers to govern without congressional constraints. Far from restraining executive authority, the Obama administration amplified it. Whether this was necessary or justified is the subject for another day, but the reality is that unilateral executive authority is, in many ways, greater than it was when George W. Bush left office.
In the national security arena, the dangers are breathtaking. The United States military is the most powerful the world has ever seen. The harm it could do if used unwisely is profound and irreversible. Even “small” decisions are literally matters of life and death. Hoping for a spectacular failure so that Trump’s irrationality and incompetence will be revealed is, to put it mildly, extraordinarily dangerous and irresponsible.
What, if anything, can be done? Political and legal opposition is part of the answer. I encourage readers to work for, donate, and support the work of groups that will do just that. Run for office, get involved locally, support those who are threatened and vulnerable.
But organizing from the outside is not enough. We need good people on the inside willing to do the hard work of governing responsibly in the face of immense challenges. Indeed, in many areas, such people can serve as a critical bulwark against ill-considered and dangerous policies.
Today, the executive branch has around 4,000 political appointees. That may seem like a lot, but there are more than two-and-a-half million executive branch civilian employees. These are the people who do the real, hard, and important day-to-day work of governing. The political appointees, while formally in charge, generally don’t know the agencies as well as the non-political civil servants. And they make millions of small decisions every day that fall beneath the radar or control of political appointees.
In his compelling book, National Security and Double Government, Michael Glennon decried the capacity of the bureaucracy to block or slow change in national security. He argued that “the Obama administration’s approach to multiple national security issues has been essentially the same as that of the Bush administration.” He blamed the “Trumanite network”—the managers of the military, intelligence, diplomatic, and law enforcement agencies who, he argued, are largely immune from electoral constraints.
The same internal resistance that made it difficult for Obama to change many national security policies could prove to be a powerful check on the worst abuses of a Trump Administration. However, that check disappears—or at the very least will be severely diminished—if qualified people with qualms about Trump refuse to serve in the federal government. If the only ones left are those willing to carry out reprehensible policies uncritically, a Trump administration will have greater leeway.
It is often said that “people are policy.” That is likely to be all the more true in a Trump Administration, where the views of the president-elect are so ill-formed. Trump himself seems to have very few moral or policy convictions. He has shifted back and forth on nearly every issue. And he did little to prepare for the possibility that he might win. Whereas Hillary had an immense policy staff in waiting and detailed plans for the first 100 days of her presidency, Trump apparently believed that planning ahead was “bad luck.”
Those I deeply respect have argued that joining the Trump administration (and remaining within it) will simply serve to “normalize” it. I acknowledge that this is a real cost. But the dangers posed by a government filled only with those who enthusiastically embrace the worst of Trump’s policies are, I believe, worse.
Moreover, the danger of normalization (as well as cooptation) can be tempered by the power of public servants to resign—publicly and prominently—when they are asked to formulate or implement abusive policies. Even those at the bottom of the government totem pole have the capacity to help shape the options at the beginning of the conversation, so the illegal orders never come. But if such orders do come, and if internal dissent fails, they can—indeed must—resign.
Resignation in response to an illegal or morally repugnant act is more powerful than choosing not to serve or preemptively resigning. In classified national security matters—which are by definition outside public view—such resignations might be the only clue the rest of us have that something terrible is happening. If those who care about rule of law do not serve, there is a good chance we will not know when lines that should not be crossed are crossed—when, for example, black sites have reopened, a program of torture has been reinstated, or families of terrorists are being killed.
To me, the hardest question is not whether to serve, but whether those who serve will be able to recognize the line between acceptable compromise and what Avishai Margalit has called rotten compromise—a compromise so morally repugnant that we should never accept it, come what may. As Teju Cole powerfully argued last week, our mental alarm bells can sometimes run amok: “Evil settles into everyday life when people are unable or unwilling to recognize it.” Those who serve must beware the slippery slope in which they tell themselves comforting stories about their own capacity to blunt the damage even as they become ever more deeply enmeshed in enabling it.
I recognize these dangers. Indeed, in a forthcoming book with my colleague Scott Shapiro, The Internationalists, we write extensively of Carl Schmitt, a legal academic turned lawyer for the Third Reich. Schmitt was not initially a Nazi enthusiast—indeed, many in Hitler’s government distrusted him because he was so late to join the party. And yet he became an extraordinarily important enabler of Hitler’s most horrific policies, blinded by a mix of fear, ambition, and perhaps even a perverse professional ethic.
Lawyers, in particular, may be especially vulnerable to such temptations. We are trained to be experts at making a legal argument for our side, whichever it might be. And when a lawyer makes an argument—even one she did not initially believe—she can become enamored of it and gradually lose the capacity to see it critically.
Still, I believe it is precisely those who are struggling over whether they can work for a Trump Administration who will be most attentive to these dangers. And those of us on the outside can help by calling out morally and legally repugnant policies once we know of them—and providing arguments, support, and advice to those who serve.
In short, it is because the situation is so dangerous—and the stakes so high—that we need those committed to rule of law to work in a Trump Administration. And it is precisely those who are most conflicted about this choice that we most need to serve. But they must also be prepared to resist unlawful and immoral policies and, if necessary, resign.
A final caveat. The announcement Sunday night that Steve Bannon will serve as a senior advisor at the White House may be a sign that a Trump administration is prepared to name people to leadership positions whose views are so vile that the only option is opposition. If there is no room for principled service—if at the moment of accepting a position, resignation appears imminent—then the only option is to opt out. And that is a terrifying—but unfortunately real—prospect.
[Editors’ note: This post is the latest in Just Security’s series on the ethical and legal dilemmas of serving in the Trump administration. This morning, David Kaye and David Luban also wrote about whether government lawyers should leave or stay and serve. Stay tuned for essays from Ryan Goodman with Samuel Moyn, and others who may join, as we grapple with what lies ahead.]